Don’t Release the Memo – It Will Make Us Look Bad

In my last post, I discussed serious, partisan wrongdoing that was discussed in the House Intelligence Committee Memo. But the wrongdoing goes far beyond that detailed in the Memo. It also extends to the arguments and efforts to prevent it from being released.

This is hardly the first time to American or World history that there has been accusations of wrongdoing done in secret by an intelligence agency. We know how the game is played. The first line of defense of the agency is to argue that the material cannot be released because it would undermine national security. Now sometimes this is true, but often it is not. When it is not true, this lie – like all lies – creates a problem for the future, because people will be less willing to accept the genuine claims that there is a genuine national security need for confidentiality.

In the case of the Memo, many critics of the release, including those with information of the Memo, argued it would undermine the intelligence agencies. But now that the Memo has been released, we can see that this was simply false. They lied. Yet the mainstream press simply ignores this.

Another argument used against releasing the Memo is that it will hurt the overall ability of the agencies to conduct surveillance in the future, including that it will hurt the reputation of the FBI with the FISA court. But it is not clear why, except in one important way – it will hurt the reputation of the FBI (and perhaps the FISA court). But if this is the reason not to release the information, this is worse than no reason. Every scandal hurts the institution that has engaged in the scandal. But that is no reason not to release the information. The normal assumption is that the scandal plagued institution requires reform and the best way to do that in a democracy is to release the information to the public. Duh!

The FBI has been engaged in wrongdoing. And some changes will certainly be needed there. Personnel changes are already underway, but perhaps other changes are needed.

The matter of the FISA court is more complicated. Yes, the FBI does not appear to have been honest with the FISA court. If that causes the court to rubber stamp the FBI less than it currently does, all for the better. But perhaps the wrongdoing extends in a way to the FISA court. It is said that the Steele dossier read like a National Enquirer article. If so, one might have hoped a FISA court worth its name would have scrutinized it. Instead, the court appears to have simply approved the continuing warrants.

Ultimately, then, the arguments against releasing the Memo appear to be of the following sort – don’t release the Memo, because that will hurt our reputation and that would not be good for us. This type of argument is outrageous. It should be ridiculed. Yet, it is treated with seriousness by the mainstream press.

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013. Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

Seriously, what’s up with Rappaport? These kinds of transparently one-sided posts are not his standard fare.

I don’t recall any prior Rappaport posts accusing people of lying without quoting the people in question, and quoting a source revealing the lie.

Moreover, it’s not as if we haven’t investigated our national security apparatus before: We did it under the Church Committee, when we learned that Hoover had run the FBI as his personal fiefdom, collecting political intelligence and spying on the civil rights movement. And how did Congress conduct oversight? On a bipartisan basis, based on testimony from the heads of the agencies involved. How is Nunes conducting oversight? He’s refused to hear from the heads of the agencies involved. This isn’t a formula for getting at the truth; this is a formula for hiding the truth.

Much like the Nunes memo itself, Rappaport’s two essays don’t seem designed to persuade anyone who isn’t already persuaded. So what’s the point? Are we trying to “be controversial” and drive traffic to this site? Distract attention from something else? Fill dead space? Because the normal merits for which I read his essays–to find a thoughtful discussion of public policy–seem to have taken an early Spring Break.

The heads of the agencies DID review it and found no material issues with it.
As to their complain that context may have been needed, were they not informed that any “missing context” the FBI / DOJ wished to provide would be warmly welcomed.

“Seriously, what’s up with [Nobody.really]?” “[Nobody’s two [comments] don’t seem designed to persuade anyone who isn’t already persuaded. So what’s the point?

Aaahhhh! Defense of the indefensible, at all costs. The Fat Lady and Her Minions must be protected.

Will nobody concede that, at a minimum, FBI / DOJ behavior has brought much deserved criticism and skepticism to a once fine and proud agency?

Ought this not to be first investigated, then condemned, and finally corrected? – or are we to simply accept this as part of modern partisan government. FBI / DOJ behavior is the most egregious outrage against proper government and civic sensibilities that I can recall since Tricky dick and the boys with Plumbers Cracks displayed their wares to the nation.

Get over it. She lost. Stop hyping conspiracy theories or as Rep. Schiff (I think) fabulizes the recurrence of Oklahoma City bombings should the once venerated FBI be brought to account for it’s misbehavior.

And now for some historical context – courtesy of Powerline Blog: (The XYZ affair).

And in the interests of illuminating partisanship, there is this, once again from Mr Schiff ( a clever little bugger, indeed) wherein the Dems seek to release sensitive information that THEY claimed they were trying to prevent being revealed by Nunes:

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